The Defendant Is The vs Unknown
2021 Latest Caselaw 3433 AP

             HON'BLE SRI JUSTICE M.VENKATA RAMANA

                   SECOND APPEAL No.445 of 2019

JUDGMENT :

The defendant is the appellant.

2. The respondent laid the suit against the appellant on the foot of

a promissory note dated 01.06.2011 for recovery of Rs.1,69,867/- with

future interest and for costs.

3. The case of the respondent is that on 01.06.2011 the appellant

borrowed Rs.1,00,000/- from him agreeing to repay the same with

interest at 24% per annum and executed the suit promissory note. It is

his further case that inspite of demands, since the appellant did not repay

the amount due, he was constrained to lay the suit for recovery of amount

due under this promissory note.

4. The defence of the appellant is that Sri Basetti Venkateswara

Rao is the brother-in-law of the respondent and that there were certain

transactions, when the appellant had approached him in relation to

financial dealings to start an oil mill. The appellant contended that in that

context he executed promissory notes out of confidence in Sri Basetti

Venkateswara Rao, out of which two were for Rs.1,00,000/- each and two

were for Rs.50,000/- each. He also contended that Sri Basetti

Venkateswara Rao got issued a legal notice on behalf of the respondent

as if he had borrowed Rs.1,00,000/- under a promissory note and that he

had repaid the amount due to the respondent. He also referred to

institution of other suits against him through different plaintiffs by MVRJ, S.A.No.445 of 2019

Sri Basetti Venkateswara Rao basing on promissory notes. Thus, he

denied his liability towards the suit claim.

5. Basing on the pleadings, the following issues were settled by the

trial Court:

"1. Whether the plaintiff is entitled to recover the suit amount due under the suit promissory note, dated 01.06.2011, as prayed for?

2. To what relief?"

6. The parties went to trial. The respondent examined himself as

P.W.1, attestors to the suit promissory note as P.W.2 and P.W.3 and

relied on Ex.A1 in support of his contention. The appellant examined

himself as D.W.1 and relied on Ex.B1 to Ex.B13.

7. On the material and evidence, the learned trial Judge rejected

the defence and decreed the suit as prayed.

8. The appeal preferred by the defendant against the decree and

judgment of the trial Court was also dismissed. In these circumstances the

present second appeal is preferred by the defendant.

9. Sri T.V.Jaggireddy, learned counsel for the appellant and Sri

Somisetty Ganesh Babu, learned counsel for the respondent, addressed

arguments at the stage of admission.

10. In the memorandum of appeal, substantial questions of law are

stated by the appellant.

11. These substantial questions sought to be raised are in relation

to proof of Ex.A1 promissory note, burden of proof thereon and veracity MVRJ, S.A.No.445 of 2019

of the testimony of the attestors in view of the nature of the defence of

the appellant.

12. The appellant admitted his signature appearing on the revenue

stamp in the suit promissory note. His written statement depicts execution

of the promissory notes in favour of Sri Basetti Venkateswara Rao, who is

brother-in-law of the respondent. Neither in his written statement nor in

his testimony as D.W.1, the appellant stated that the suit promissory note

was the promissory note obtained by Sri Basetti Venkateswara Rao from

him.

13. In view of the issues settled at the trial and having regard to

the nature of defence of the appellant, the burden to establish execution

of Ex.A1 suit promissory note is on the respondent. He deposed as P.W.1

clearly setting out his claim. P.W.2 and P.W.3, who are attestors as per

Ex.A1 promissory note, deposed with reference to borrowing money

thereunder by the appellant in their presence from the respondent and

subscribing signature to the promissory note. Cross-examination of these

witnesses on behalf of the appellant at the trial did not bring out any

material to discredit their testimony.

14. One of the contentions of the appellant is that these two

attestors as such, figured in all the transactions set up by Sri Basetti

Venkateswara Rao against him and that they also deposed in other suits,

namely, O.S.No.58 of 2014 on the file of the learned Principal Junior Civil

Judge, Nandigama and O.S.No.83 of 2014 on the file of the learned Senior

Civil Judge, Nandigama. He also produced Ex.B2 and Ex.B3 being the

certified copies of the depositions in O.S.No.58 of 2014 of P.W.2 and MVRJ, S.A.No.445 of 2019

P.W.3 respectively. However, Ex.B2 and B3 were not confronted to P.W.2

and P.W.3 respectively at the trial. Mere marking of these documents by

the appellant when he was examined as D.W.1, is not sufficient and it did

not amount to proof of any of the statements of these witnesses therein

making out their relationship.

15. The contents of Ex.A1, when considered with the testimony of

P.W.1 to P.W.3, did prove the suit promissory note transaction.

16. Sri T.V.Jaggireddy, learned counsel for the appellant,

contended that the evidence adduced on behalf of the respondent is not

sufficient having regard to circumstances set out by the appellant in his

defence and evidence let in at the trial. The learned counsel also pointed

out that there is no proof that appellant himself scribed this promissory

note which is not otherwise meeting the requirements under Section 4 of

the Negotiable Instruments Act.

17. It is in the evidence of the respondent as P.W.1 that Ex.A1

promissory note was scribed by the respondent. Ex.A1 is in a printed

proforma and its contents stood filled up. But this promissory note did not

bear an endorsement by the respondent that he filled up these contents

and that he is the scribe of this promissory note.

18. In their testimony, P.W.2 and P.W.3 did not depose that Ex.A1

suit promissory note was filled up by the respondent and he being its

scribe. In such an event, it is the contention of Sri T.V.Jaggi Reddy,

learned counsel for the appellant, that the testimony of these two

witnesses should be rejected since it is not proving due execution of Ex.A1

and that their veracity is questionable. In this context, the learned counsel MVRJ, S.A.No.445 of 2019

also pointed out that P.W.3 clearly admitted in cross-examination that he

is closely related to the respondent and the plaintiffs in other two suits,

which are referred to above, and that they all belong to one family.

19. These statements elicited in cross-examination either of P.W.2

or P.W.3 cannot have any bearing when their version is clearly presenting

the core requirement of proving due execution of Ex.A1 suit promissory

note.

20. The appellant as D.W.1 though deposed of the circumstances

set out in the written statement with reference to Ex.B1 to Ex.B13, they

do not hold any bearing nor affect the proof of Ex.A1 transaction offered

by the respondent.

21. Both the Courts below considered the material on record in

proper perspective and had drawn conclusions recording definite findings

rejecting the defence of the appellant. In the light of these concurrent

findings, consistently recorded by both the Courts below basing on the

material on record, it is rather difficult to hold that there are such

substantial questions of law requiring consideration and determination

now in terms of Section 100 CPC. The questions sought to be raised on

behalf of the appellant are purely based on facts and no debate is

required in this matter on any questions pointed out by the appellant nor

do they have the status of substantial questions of law. Ex.A1 promissory

note is meeting the requirements under Section 4 of the Negotiable

Instruments Act and it did not suffer from any deficiency.

22. The learned counsel for the respondent referring to the

evidence and circumstances on record contended that both the Courts MVRJ, S.A.No.445 of 2019

below rightly held in favour of the respondent and that no interference is

called now at this stage.

23. In the circumstances, this Court is satisfied that there are no

substantial questions of law to consider and determine in this second

appeal. Therefore, this second appeal has to be dismissed.

24. In the result, the second appeal is dismissed confirming the

decrees and judgments of both the Courts below. No costs.

As a sequel, pending miscellaneous petitions, stand closed. Interim

Orders, if any, stand vacated.

________________________ JUSTICE M.VENKATA RAMANA Dt:08.09.2021 RR MVRJ, S.A.No.445 of 2019

HON'BLE SRI JUSTICE M.VENKATA RAMANA

SECOND APPEAL No.445 of 2019

Dt:08.09.2021

RR